Primer – Personal Jurisdiction and Service of Process
Print Article- Posted on: Sep 12 2025
Obtaining personal jurisdiction[1] over a defendant is a critical aspect of litigation. There are two components of personal jurisdiction, which the New York Court of Appeals has succinctly described as follows:
One component involves service of process, which implicates due process requirements of notice and opportunity to be heard. Typically, a defendant who is otherwise subject to a court’s jurisdiction, may seek dismissal based on the claim that service was not properly effectuated.
The other component of personal jurisdiction involves the power, or reach, of a court over a party, so as to enforce judicial decrees. This consideration—the jurisdictional basis—is independent of service of process. Service of process cannot by itself vest a court with jurisdiction over a non-domiciliary served outside New York State, however flawless that service may be. To satisfy the jurisdictional basis there must be a constitutionally adequate connection between the defendant, the State and the action.
Keane v. Kamin, 94 N.Y.2d 263, 265 (1999) (citations omitted).
Today’s article addresses the service of process component. The law is clear that a “court lacks personal jurisdiction over a defendant who is not properly served with process.” Everbank v. Kelly, 203 A.D.3d 138, 142 (2nd Dep’t 2022) (citations omitted); see also Castillo-Florez v. Charlecius, 220 A.D.3d 1, 2 (2nd Dep’t 2023); Flatow v. Goddess Sanctuary & Spa Corp., 233 A.D.3d 656, 657 (2nd Dep’t 2024).
Proper service of process is important because it implicates an individual’s constitutional rights and, accordingly, “[w]hen it is determined that process was ineffective, all subsequent proceedings are rendered null and void as to that party. Everbank, 203 A.D.3d at 143 (citations omitted); see also Federal Nat. Mort. Ass’n v. Smith, 219 A.D.3d 938, 940, 941-42 (2nd Dep’t 2023); Flatow, 233 A.D.3d at 257. “A defendant’s eventual awareness of pending litigation will not affect the absence of jurisdiction over him or her where service of process is not effectuated in compliance with CPLR 308.” Nationstar Mort. LLC v. Molyaev, 235 A.D.3d 648, 649 (2nd Dep’t 2025) (citations and internal quotation marks omitted); see also Raschel v. Rish, 69 N.Y.2d 694, 697 (1986). “Service of process upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308.” Federal Nat. Mort. Ass’n, 219 A.D.3d at 941-42 (citations, internal quotation marks and brackets omitted; hyperlink added); see also Castillo-Florez, 220 A.D.3d at 2; Flatow, 233 A.D.3d at 257. “Typically, a defendant who is otherwise subject to a court’s jurisdiction, may seek dismissal based on the claim that service was not properly effectuated.” Keane, 94 N.Y.2d at 265 (citations omitted).
A “process server’s affidavit of service gives rise to a presumption of proper service.” Deutsche Bank National Trust Co. v. Stolzberg, 165 A.D.3d 624, 625 (2nd Dep’t 2018) (citations and internal quotation marks omitted). A “sworn denial containing a detailed and specific contradiction of the allegations in the process server’s affidavit will defeat the presumption of proper service.” Id. (citations, internal quotation marks and brackets omitted); see also U.S. Bank N.A. v. Henry, 232 A.D.3d 667, 669 (2nd Dep’t 2024). However, “[b]are and unsubstantiated denials are insufficient to rebut the presumption.” Stolzberg, 165 A.D.3d at 625 (citations and internal quotation marks omitted); see also U.S. Bank Trust, N.A. v. Lane, 2025 WL 2326755 (2nd Dep’t August 13, 2025). For example, the Court, in Castillo-Florez, held that the defendant’s sworn affidavit “in which he, inter alia, denied receipt of service, denied residing at the [service] address at the time service allegedly was made, and set forth the location of his address at the time of service,” was sufficient to rebut the presumption of service and require a hearing. Castillo-Florez, 220 A.D.3d at 14-15 (citations omitted).
Sufficiently rebutting the presumption of proper service afforded to the process server’s affidavit, entitles a defendant to a traverse hearing to determine whether service of process was properly effectuated. Nationstar Mort. LLC v. Molyaev, 235 A.D.3d 648, 650 (2nd Dep’t 2025); Lane, supra; Stolzberg, 165 A.D.3d at 626.
On September 10, 2025, the Appellate Division, Second Department, decided Bank of New York Trust Co., N.A. v. Herbin, an action in which the propriety of service of process on the defendant was decided. The plaintiff in Herbin is a lender that commenced a mortgage foreclosure action.[2] Upon the borrower’s default, the lender was awarded summary judgment and, thereafter, a judgment of foreclosure and sale. The subject property was sold at auction. The borrower subsequently moved “pursuant to CPLR 5015(a) to vacate the order of reference and the judgment of foreclosure and sale, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and to set aside the deeds that transferred the property after the sale.” (Hyperlinks added.) The motion court denied the motion.
On the borrower’s appeal, the Second Department reversed. After addressing many of the issues discussed, supra, and concluding that the borrower was entitled to a traverse hearing to determine if service of process was ever properly effectuated, the Court stated:
Here, the defendant demonstrated his entitlement to a hearing on the issue of service through his affidavit and evidentiary submissions. The defendant averred that he has never lived at the address where he was purportedly served on February 28, 2008, and that he lived at a different address, 1222 35th Avenue in Long Island City, from 2004 through February 2008. He submitted proof of his residence at 1222 35th Avenue. Further, he submitted proof that the process server who allegedly served the defendant on February 28, 2008, swore that he served another individual in South Ozone Park at the exact same time. The defendant also submitted evidence that, in 2016, this particular process server’s application to renew his license as an individual process server was denied by the New York City Department of Consumer Affairs on the basis that he had falsified affidavits of service. Since the defendant’s submissions rebutted the presumption of proper service established by the process server’s affidavit, the Supreme Court should have directed a hearing to determine whether personal jurisdiction was acquired over the defendant. [Citations omitted.]
What makes Herbin more interesting than many other service of process cases is the Court’s consideration of the New York City Department of Consumer Affairs’ failure to renew the process server’s license. Perhaps a new angle to approach cases of this type.
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
[1] This BLOG has written dozens of articles addressing numerous aspects of personal jurisdiction and service of process. To find such articles, please see the BLOG tile on our website and search for “jurisdiction” or “service of Process” or any other commercial litigation issue that may be of interest you.
[2] This BLOG has written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issue that may be of interest you.
Tagged with: Civil Practice Law and Rules, Commercial Litigation, Personal Jurisdiction, Real Estate Litigation
